Unpublished Disposition, 919 F.2d 145 (9th Cir. 1990)

MEMORANDUM^** 

Sammy Ray Portillo, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion. Portillo contends that he was denied effective assistance of counsel at his plea hearing.¹  We review de novo, Doganiere v. United States, 914 F.2d 165, 167 (9th Cir. 1990), and affirm.

Portillo's contention that he received ineffective assistance of counsel is meritless. To demonstrate ineffective assistance, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Portillo argues that he received ineffective assistance because his attorney told him that he would receive a five-year sentence in exchange for pleading guilty to one count of conspiracy to possess cocaine with intent to distribute. Portillo was sentenced to a fifteen-year term of imprisonment and a two-year special parole term. " [Portillo's] attorney's inaccurate prediction of what sentence [Portillo] would receive upon pleading guilty does not rise to the level of a gross mischaracterization of the likely outcome of the case, and thus does not constitute ineffective assistance of counsel." See Doganiere, 914 F.2d at 168.

Moreover, after holding an evidentiary hearing on Portillo's first habeas petition, filed in 1972, the district court made a finding of fact that no promises had been made to Portillo by his attorney regarding the sentence he would receive, only a prediction. This finding is amply supported by the record.² 

Finally, Portillo suffered no prejudice from his attorney's sentencing prediction because, before accepting his guilty plea, the judge informed Portillo that he faced a maximum sentence of thirty-six years. Accordingly, the district court correctly denied Portillo's section 2255 motion because he did not state a claim of ineffective assistance of counsel. See Strickland, 466 U.S. at 687.

AFFIRMED.